Weekly Law Update on Florida Divorce & Child Custody Cases

Weekly summaries of decisions made by Florida Court of Appeals on actual divorce, child custody, child support and alimony cases.

Florida Divorce & Family Law Update for 3 Weeks Ending August 16, 2015

August 20, 2015

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues. Clicking on the case name allows you to view the appellate opinion described in the analysis below. These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters. The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

Case:              Stoltzfus v. Stoltzfus
Court:            Second District Court of Appeal.
Trial Judge: Marc B. Gilner.
Attorneys:     Troy H. Myers, Jr., Mark C. Dungan, Lori M. Dorman.
Issues:            Alimony.

Holding:         Moneys from retirement accounts which are distributed to the parties are considered income for the purpose of determining alimony where the principal of the retirement account will not be invaded for the purpose of support. It does not matter whether the party has attained the age at which funds may be withdrawn without penalty. Under Florida Statutes (2013), income includes retirement benefits, pensions, dividends, and interest. In this case, the trial court erred in not considering as income interest from pension accounts distributed to the Former Wife and interest-generating equalization payments from the Former Husband. The interest earned on the equalization payments fell within the statutory definition of income and should have been considered in calculating the Former Wife's income. The amended final judgment also contained a mathematical error in the calculation of the Former Wife's need. The appeals court reversed and remanded for a redetermination and recalculation.

Case:              Garcia v. Garcia
Court:            Third District Court of Appeal.
Trial Judge: Barbara Areces.
Attorneys:     Douglas Isenberg.
Issues:            Child support.

Holding:         Florida Rules of Civil Procedure provide that a magistrate is responsible for creating an accurate and complete record of proceedings. A trial court may not adopt or ratify a magistrate’s report if he or she fails to file a complete record of the evidence with the report, regardless of whether exceptions have been filed to that report. If a trial court has not received a complete record, all subsequent actions based on such reports and recommendations may be deemed erroneous. In this case, the trial court erred when it ratified the general magistrate’s report despite having an incomplete record of the proceedings. A transcript from the hearing during which the testimony of the Former Husband and his accountant could not be prepared as the recording was inaudible. The testimony was absent from the record provided to the trial judge. The appeals court reversed and remanded with instructions to conduct further proceedings.

Case:              Hall v. Hall
Court:            Fouth District Court of Appeal.
Trial Judge: Timothy L. Bailey.
Attorneys:     Virginia R. Vetter, Susana Rice Roque, Linda M. Jaffe.
Issues:            Equitable Distribution, Marital Settlement Agreements.

Holding:         Two grounds lie for setting aside or modifying a Marriage Settlement Agreement (MSA):

1.     By establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

2.     By establishing the MSA makes an unfair or unreasonable provision for a former spouse, given the circumstances of the parties as shown by evidence of the parties’ relative situations (including their respective ages, health, education, and financial status). For this, determination, the trial court must find that the agreement is disproportionate to the means of the defending spouse, shown by record evidence of his or her financial means. If the MSA is found to be unreasonable, a presumption arises that either the defending spouse concealed relevant information or the challenging spouse lacked information regarding the defending spouse’s finances when the MSA was reached. The defending spouse can rebut by showing that there was full, frank disclosure or that the challenging spouse had a general and approximate knowledge of the marital property. The test is the challenging spouse’s such knowledge at the time of the MSA and whether he or she is prejudiced by lack of information.

Refusal to allow an amendment is an abuse of the trial court’s discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.

MSA Was Valid & Enforceable

Regarding the first ground, the Former Husband did not present evidence that the Former Wife or her attorney engaged in any fraud, duress, etc during the relevant proceedings. Rather, his position is that his attorney forgot to present an alleged first (missing) page of a draft version of the MSA to the Former Wife for her to consider.

As to the second ground, the Former Husband did not present evidence as to the parties’ relative situations to allow a trial court to make a decision as to its being unreasonable. The form of the MSA accepted by the trial court contained the style of the case, a clear heading, the parties’ initials, a signature page, and addressed the parties’ financial accounts by stating that they agreed to certain aspects of distribution. As such, and since he did not provide evidence of a purported additional page, the trial court did not err by ruling that the MSA filed by Former Wife was a valid, enforceable agreement.

Permission to Amend

The trial court erred when it denied the Former Husband’s motion to amend his answer on the grounds that it had been 18 months since the Former Wife filed her petition and the case was 30 days from trial. On the facts, it is not clear that allowing Former Husband leave to amend would have prejudiced Former Wife. Nor did he abuse the privilege to amend as this was his first such request. Finally, he sought to amend to raise and address relevant issues.

The appeals court reversed and remanded with instructions to allow Former Husband to file his amended answer.

Case:              Kemp v. Kemp
Court:            First District Court of Appeal.
Trial Judge: Daniel F. Wilensky.
Attorneys:     Seth Schwartz, Eric Lawson, Allison E. Folds.
Issues:            Equitable Distribution, Attorney’s Fees.

Holding: A trial court may not order an interim partial equitable distribution in the absence of a verified motion requesting same. In this case the trial court erred when, after a hearing on the Former Wife’s motion for temporary attorney’s fees (past due and prospective) issued an order finding that the Former Husband lacked the ability to pay her attorney’s fees and directed what was effectively an interim partial equitable distribution instead. The trial court lacked authority to do so as the relevant statutory requirements for such an order were not met. The trial court misapplied the law and failed to make proper findings to support its order. The appeals court reversed and remanded for reconsideration of the Former Wife’s motion for temporary attorney’s fees.

Case:              Freiha v. Freiha
Court:            First District Court of Appeal.
Trial Judge: Charles W. Arnold.
Attorneys:     William S. Graessle, Jonathan W. Graessle, Rebecca Bowen Creed.
Issues:            Procedure.

Holding:         An appeal on a non-final Final Judgment of Dissolution of Marriage is premature. Where judgment is partial; reserves jurisdiction to expend additional judicial labor over further matters, such as non-collateral issues of child support and parental responsibility; or retains jurisdiction over integrally related issues, an appeal may be premature and improper. In this case, the appellant pursued appeal on a Final Order of Judgment that did not finally resolve integral matters. The appeal was dismissed without prejudice to the appellant to file a notice of appeal upon the rendition of a final order.

Case:              J.C. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Rosa C. Figarola.
Attorneys:     Richard F. Joyce, Karla F. Perkins, Laura E. Lawson (Sanford).
Issues:            Termination, Case Plan.

Holding:         An order for termination must sufficiently articulates the trial court’s considerations and findings. However, if record evidence and the detailed considerations of the trial court support a finding of termination, the wording of the order in that regard may be viewed as harmless error. In this case, the trial court erred in rendering an order that was did not sufficiently articulate that the Mother: (i) materially breached her case plan, and (ii) would be unlikely or unable to comply substantially with the case plan prior to its expiration. However, the appeals court determined this was harmless error as record evidence, together with the trial court’s detailed consideration of the Mother’s conduct, supported such an order for termination. The appeals court affirmed.

Case:              Lopez v. Lopez
Court:            Fourth District Court of Appeal.
Trial Judge: Arthur M. Birken, Merrilee Ehrlich.
Attorneys:     Venol C. Adams, Susan R. Brown.
Issues:            Custody, Time-sharing.

Holding:         Orders determining the rights or obligations of a party regarding child custody or time-sharing under a parenting plan can be non-final orders. A timely motion for rehearing will suspend the rendition of a final order until the order disposing of the motion for rehearing is entered. However, a motion for rehearing does not suspend the rendition of a non-final order. Notice must be timely. In this case, the appellant (Father) appealed an order for custody, visitation and proposing a time-sharing schedule, which was conditioned on the successful outcome of reunification therapy. This was a non-final order. His notice of appeal was not filed within the procedural timelines (in this case, within thirty days) after the non-final order was rendered. The appeals court was required to dismiss for lack of jurisdiction.

Case:              Whissell v. Whissell
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:     Karen J. Haas, Jonathan S. Root.
Issues:            Contempt, Procedure.

Holding: Where an appellant has disobeyed an order of the trial court, the appellate court may, in its discretion, either entertain or dismiss an appeal. However, where a dismissal is ordered it is mandatory that the non-compliant appellant must be given a period of grace, prior to the effective date of the dismissal, in which to comply with the order(s) at issue.

In this case, the appellant repeatedly refused to comply with the trial court’s orders regarding temporary support and discovery, resulting in four findings of contempt and three writs of bodily attachment. The appellant (Former Husband) was incarcerated for such conduct and was released only after he made some payment on arrearages and promised the trial court future compliance, which he ultimately breached. The appeals court ordered the appeal be dismissed unless he established substantial compliance with the extant orders within 30 days of the appeal court decision. Jurisdiction was relinquished to the trial court for 30 days to determine the appellant’s compliance and provide a status report.

Case:              Chianese v. Brady
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy Bailey.
Attorneys:     Nancy A. Hass, Cynthia L. Greene.
Issues:            Attorney’s Fees.

Holding:         The award of attorney’s fees is premised on the parties’ respective need and ability to pay. Notwithstanding, the trial court must also determine the reasonableness of the fees before ordering a party to pay fees. In this case, the trial court did not err in denying the Mother further attorney’s fees. The trial court determined that the case was “out of control”, the Mother had failed to prove the reasonableness of the fees requested, and the Father has already paid her temporary attorney’s fees. Specifically, it had previously awarded the Mother $30,000.00 for temporary fees, then denied a subsequent request for more, which denial was affirmed on appeal. She then filed an additional (third) motion for temporary attorney’s fees on the grounds that further substantial financial discovery was required as the Father was objecting and new and novel theories to obtain an increase in child support were being advanced. The appeals court affirmed the denial of additional fees.

Case:              Hutchinson v. Hutchinson
Court:            First District Court of Appeal.
Trial Judge: Monica J. Brasington.
Attorneys:     Stephen K. Johnson, Emily A. Snider, Jonathan P. Culver.
Issues:            Alimony, Attorney’s Fees.

Holding: An award of attorney’s fees is reviewed for an abuse of discretion. Under Florida Statute, such awards are to ensure that both parties have a similar ability to obtain competent legal counsel. The general consideration is the requesting spouse’s financial need and the other spouse’s ability to pay. Where the parties are equally able to pay attorney’s fees, the trial court abuses its discretion by requiring one spouse to pay the other’s fees. Where marital property has been equitably distributed and alimony is awarded such that the parties’ incomes have been equalized, a trial court abuses its discretion by awarding attorney’s fees. In this case, the trial court erred in that it awarded the Former Wife attorney’s fees after it had rendered final judgment by which equitable distribution and alimony left the parties in substantially the same financial position. The appeal court reversed the award of attorney’s fees and costs.

Case:              Earl v. Earl
Court:            Fourth District Court of Appeal.
Trial Judge: Thomas H. Barkdull, III.
Attorneys:     Jane Kreusler-Walsh, Stephanie L. Serafin, Troy William Klein.
Issues:            Alimony, Procedure.

Holding:         The written findings of a trial court must conform with the oral pronouncement. In this case, the trial court erred in failing to provide that the Former Husband obtain and maintain life insurance in the (written) final judgment of dissolution despite having made such a determination in the oral pronouncement. The appeals court reversed and remanded to allow the trial court to include the Former Husband’s requirement to maintain life insurance.

Case:              Somasca v. Somasca
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:    J P. Brandon Perkins, Kristen D. Perkins, Brett C. Powell, Alexander Brockmeyer, Katheryn E. Smith.
Issues:            Equitable Distribution.

Holding: When marital assets are used during the marriage to reduce the mortgage on non-marital property, the increase in equity on the property is a marital asset subject to equitable distribution. The increase in equity is not to be confused with the concept of the appreciation in the overall value of the asset. The enhancement in equity is captured under Florida Statute, which holds that marital assets and liabilities include, among other things, the enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.

In this case, the trial court erred in its treatment of the reduction in the mortgage indebtedness on a building the Former Husband purchased prior to the marriage, which had depreciated in value (a non-marital asset). The parties used marital funds to reduce the mortgage on the building, which resulted in the Former Husband obtaining enhanced equity in the building despite the building depreciating in value during the parties’ marriage. The trial court erred in failing to give the Former Wife a credit for the use of marital funds to pay down the mortgage. The appeals court reversed the equitable distribution and remanded for correction.

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Florida Divorce & Family Law Update for Week Ending July 19, 2015

July 23, 2015

Case:              Fosshage v. Fosshage
Court:            Third District Court of Appeal.
Trial Judge: Tegan Slaton.
Attorneys:     Samuel J. Kaufman, Lawrence E. Harkenrider, Jiulio Margalli.
Issues:            Time-sharing, Modification (Permanent Residence).

Holding: Under Florida Statutes (2013), there is a clear distinction between modification based on changed circumstances and modification based on relocation. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. In determining whether a change in circumstances has occurred, a trial court must consider a statutorily enumerated list of factors. A petition for relocation, on the other hand, requires a different procedure with specific statutory requirements governing the content of the petition, service on the other parent, burdens of proof, and factors to be considered by the court.

In this case, the trial court erred in treating what was a petition for relocation as a change in circumstances and therefore did not adhere to or consider the correct process and factors. The appeals court reversed and remanded for the proper proceedings.

Case:              Dravis v. Dravis
Court:            Second District Court of Appeal.
Trial Judge: Keith Spoto.
Attorneys:     Jean Marie Henne, Shelley Harrell Shelton.
Issues:            Marital Assets, Equitable Distribution.

Holding:         Cash Gifts
An appeals court will review de novo a trial court's characterization of an asset as marital or nonmarital, and any factual findings necessary to make this legal conclusion, for competent, substantial evidence. Nonmarital assets may lose their nonmarital character where they have been commingled with marital assets. This is especially true with respect to money because money is fungible, and once commingled, loses its separate character. It is irrelevant that a bank account is titled in the name of one Former Spouse, alone, as it may become marital if both marital and nonmarital funds are commingled in that account. It is not necessary for commingled funds to be used to pay marital expenses in order to be treated as entirely marital; it is enough that the funds be commingled.

Dissipated Proceeds

The appeals court reviews a trial court's equitable distribution decisions for abuse of discretion and examines its valuation of marital assets to determine whether it is supported by competent, substantial evidence. Generally, it is error to include in an equitable distribution scheme any assets that have been diminished or dissipated during the dissolution proceedings. The exception, however, is where misconduct during the divorce case results in the dissipation of a marital asset. To determine whether such misconduct occurred, the trial court must assess whether one spouse used marital funds for a purpose unrelated to the marriage at a time when the marriage was undergoing an irreconcilable breakdown. Further, such misconduct must be supported by the record evidence, and by specific factual findings of the trial court.

In this case, the trial court did not err in its determination as to misconduct and characterization of marital assets. The trial court did, however, err regarding the equitable distribution of the parties' marital assets. Competent, substantial evidence demonstrated that certain nonmarital assets (being the proceeds of monetary gifts to the Former Wife) were commingled with proceeds that were marital assets. The monetary gifts therefore lost their nonmarital character and became marital assets subject to equitable distribution. However, the trial court failed to make specific factual findings on the matter. This necessitated the reversal of the judgment on that issue. The appeals court affirmed as to the cash gifts and alimony, but reversed and remanded for further proceedings on equitable distribution.

Case:              Dickson v. Dickson
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:     Nicholas A. Shannin, Lauren M. Ilvento, Barry P. Burnette, Matthew B. Capstraw
Issues:            Timesharing.

Holding:     A trial court's order modifying a parenting plan and timesharing schedule is reviewed for an abuse of discretion. The trial court has less authority and discretion to modify timesharing than it does to make the initial timesharing determination. Under Florida Statutes (2013), relocation is a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing. Further, the change of location must be at least 50 miles from that residence. In the absence of a statutory or contractual provision to the contrary, the proper method to measure the distance between two points is the straight-line or “as the crow flies” measure. Under the principle of shared parental responsibility, major decisions affecting the welfare of a child are to be made after the parents confer and reach an agreement. If the parents reach an impasse, the dispute should be presented to the court for resolution whereby the court must resolve the impasse by determining the best interests of the child.

In this case, the trial court abused its discretion by modifying the timesharing agreement without evidence that the welfare of the minor child would be promoted by a return to the school the minor child had previously attended and modifying the timesharing arrangement so that the Father assumed the primary timesharing responsibilities. The Mother’s move did not violate the marital settlement agreement or the relocation statute. While the timesharing schedule largely met the statutory requirements, it did not include a school designation, and the marital settlement agreement did not expressly prohibit a move. Further, the parties agreed that the Mother moved forty-nine miles “as the crow flies,” using the straight-line test and was not required to file a petition to relocate. However, the dissolution final judgment gave the parties shared parental responsibility on major decisions, including educational matters. Because the parties were unable to agree on the minor child’s school, the Mother was required to obtain court approval before unilaterally changing the schools the minor child attended. The appeals court reversed and remanded with directions.

Case:              Rossi v. Rossi
Court:            Fifth District Court of Appeal.
Trial Judge: Kelly J. McKibben.
Attorneys:     Joe Teague Caruso.
Issues:            Equitable Distribution.

Holding:         A trial court's determination that a motion or other filing is improper, as labelled, is a question of law and is reviewed de novo. Where it is apparent that an improperly-labelled motion is intended to operate as an authorized motion, an appellate court must consider the motion as if it were properly labelled. Where a party files a motion that would be unauthorized based on the motion's title, Florida courts will consider the motion's substance in determining whether the motion was authorized. The mislabelling of a motion will not preclude consideration. In this case, the trial court erred as it failed to consider the content of an improperly-labelled motion for rehearing and treated the motion as a list of exceptions. Specifically, the trial court found no issue with the substantive content of the Former Wife's list of exceptions. That finding necessarily implied that the substantive content of the motion for rehearing—which was identical to the list of exceptions was also sufficient. The trial court should have treated Former Wife's unauthorized motion for rehearing as an authorized list of exceptions and should have held a hearing on the magistrate's report. The appeals court reversed the trial court's entry of final judgment and remanded for a hearing on the Former Wife's list of exceptions to the magistrate's report.

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Florida Divorce & Family Law Update for Week Ending July 12, 2015

July 14, 2015

Case:             Thompson v. Malicki
Court:            Second District Court of Appeal.
Trial Judge: Lee Ann Schreiber.
Attorneys:     Christopher R. Bruce.
Issues: Relocation, Modification, Child Support

Holding: A trial court's imputation of income must be supported by competent, substantial evidence. When calculating child support, Florida Statutes (2011) provide that the trial court shall impute income to a voluntarily unemployed or underemployed parent absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. Where income is to be imputed, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.

In this case the trial court did not err as to its modification of timesharing and the denial of relocation as those findings were based on cogent, substantial evidence. However, the trial court erred when it based an award of child on imputed income of the Former Wife which was not supported by sufficient findings or evidence. Reliance on past work history alone is insufficient to support imputation of income. Particularized findings are required regarding work history, occupational qualifications, and the current job market in the community to support the imputation of income. Failure to make these findings results in reversal.

The appeals court remanded for the trial court to take further evidence on this issue and recalculate the amount of child support as necessary.

Case:             J.B. etc v. Florida D.C.F.
Court: Florida Supreme Court.
Trial Judge:
Attorneys: Stephanie Christina Zimmerman, Dwight Oneal Slater, Ryan Thomas Truskoski, George E. Schulz, Jr., Robin L. Rosenberg, Wendie Michelle Cooper, Kelley Ruth Schaeffer.
Issues:            Termination, Process.

Holding:         The right to counsel in termination of parental right (TPR) proceedings includes the right to effective assistance and requires a means of vindicating that right.
The Supreme Court considered two questions.

1.    Is the criminal standard of ineffective assistance of counsel applicable to claims of ineffective assistance of counsel in proceedings involving the termination of parental rights? The SC answered in the negative.

2.  Is any procedure available following the termination of parental rights to raise claims of ineffective assistance of counsel that are not apparent on the face of the record? The SC answered in the affirmative.The Supreme Court:

a. established the appropriate standard for determining whether counsel provided constitutionally ineffective assistance in termination of parental rights proceedings;

b. provided a temporary process for bringing such claims of ineffective assistance; and

c. directed the development of rules providing the procedure for vindicating that right.

1.     The Right to Counsel

Under Florida statutory law, parents have a right to counsel in both dependency and TPR proceedings. While the appointment of counsel is not required by the constitution, it is required under the due process clause of the United States and Florida Constitutions, in proceedings involving the permanent termination of parental rights to a child.

2.     The Right to Effective Assistance of Counsel

The right of indigent parents to counsel under the Florida Constitution in TPR proceedings necessarily includes the constitutional right to the effective assistance of counsel.

3.     The Standard for Ineffective Assistance

The standard for determining ineffective assistance of counsel claims is that the parent must establish that the result of the TPR proceeding would have been different but for the attorney’s deficient performance. Once tis is established, then the order terminating parental rights should be vacated, and the case returned to the circuit court for further proceedings.

4. Temporary Procedure for Ineffective Assistance Claims in TPR Cases

Post-TPR proceedings must be expeditious. A permanent such process will be developed. The Supreme Court set an interim process for bringing claims of ineffective assistance of counsel following the termination of parental rights. This interim process requires that claims of ineffective assistance first must be raised by the parent and ruled on by the trial court. The trial judge must ensure that the parents whose rights are at issue are informed of those rights such that at the end of each TPR adjudicatory hearing, the circuit court shall orally inform the parents for whom counsel was appointed regarding the right to:

(1) appeal the order entered at the end of the TPR proceedings to the district court; and

(2) file a motion in the circuit court alleging that appointed counsel provided constitutionally ineffective assistance (if the court terminates parental rights).

In addition, a written order terminating parental rights shall include a brief statement informing the parents of the right to effective assistance and a brief explanation of the procedure for filing such a claim. Indigent parents (likewise without the assistance of appointed counsel) must file a motion in the circuit court claiming ineffective assistance of trial counsel in the TPR proceeding. Appeal from an order denying a motion alleging the ineffective assistance of counsel will be raised and addressed within any appeal from the order terminating parental rights. A parent, without assistance of appointed counsel, shall have twenty (20) days after the termination judgment issues within which to file a motion in the trial court alleging claims of ineffective assistance of counsel. The motion must contain the case name and number; the date the order of termination of parental rights issued; the specific acts or omissions in trial counsel’s representation of the parent during the TPR proceedings that the parent alleges constituted a failure to provide reasonable, professional assistance; and an explanation of how the errors or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance.

If a parent files an ineffective assistance of counsel motion, rendition of the order in the TPR proceeding will be tolled for purposes of appeal until the circuit court issues an order on the pro se ineffective assistance motion. If a parent chooses to file a motion claiming ineffective assistance of counsel, then counsel of record cannot continue representation.

If the parent chooses to appeal, the attorney must certify, among other things, that:

a.     the parent so chose;
b.     a notice of appeal signed by counsel;
c.     the parent has been filed; and
d.     an order appointing appellate counsel, if any, has been entered.

Further, the appointed attorney representing an indigent parent, must, after issuance of an order terminating parental rights, discuss appellate remedies and determine whether the parent wants to appeal the TPR order. If the answer is affirmative, counsel must also inquire whether the parent intends to file a motion claiming ineffective assistance of counsel. If the parent responds affirmatively, then counsel must immediately seek withdrawal on this basis. In addition, if the parent subsequently files a motion alleging ineffective assistance despite the parent’s prior expression of a contrary intent, if counsel of record is also appellate counsel withdrawal is required at that time, and new counsel will be appointed for any appeal from the TPR order and from the disposition of the ineffective assistance of counsel motion.

When a parent files a motion alleging ineffective assistance of counsel, rendition of the trial court’s TPR order will be tolled for purposes of appeal until the trial court rules on any claim of ineffective assistance of counsel. The trial court shall review the ineffective assistance motion and order compilation of the record regarding the termination of parental rights proceedings on an expedited basis. Further, the trial court shall conduct proceedings, including an evidentiary hearing if necessary, to determine whether the motion should be granted or denied. The circuit court shall render an order within twenty-five (25) days after the motion alleging ineffective assistance was filed or the motion shall be deemed denied.

On appeal, the district court will review claims regarding the parent’s appeal from the trial court’s TPR order and from the disposition of the ineffective assistance motion. This process will apply to any case in which a judgment terminating parental rights is entered after this case becomes final. Creation of the permanent process and development of the attendant rules will be the task of a special committee.

In this case, the Supreme Court determined, that the appellant failed to present any basis for setting aside the order terminating her parental rights and affirmed the trial court’s decision.

Case:              S.V. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Alan S. Fine.
Attorneys:      Karla F. Perkins, Kele Stewart, Laura E. Lawson.
Issues:            Dependency, Reunification.

Holding:         A certiorari review of the trial court’s non-final order is limited to whether the trial court departed from the essential requirements of law in conducting its review of the general magistrate’s report and recommendations, resulting in irreparable harm to the petitioner that cannot be remedied on direct appeal.

In this case, the trial court did not err as it adhered to the essential requirements of law and applied the correct legal standards when it reviewed the general magistrate’s recommendations. Specifically, the trial court found that competent substantial evidence did not support the general magistrate’s finding that the Father, at this time, had the capacity to meet the children’s extensive and unremitting therapeutic needs. The appeals court denied the petition to review the lower court decision.

Case:             Quinn v. Quinn
Court:            Second District Court of Appeal.
Trial Judge: John A. Schaefer.
Attorneys:      Ingrid Anderson.
Issues:            Child Support, Equitable Distribution.

Holding:         When a parenting plan provides that the children will spend a "substantial amount of time" with each parent, defined as at least twenty per cent of the overnights per year, the award of child support should be adjusted as set forth in Florida Statutes (2013), requiring calculation based in part on the percentage of overnights the children spend with each parent. While the statute presumptively establishes the amount of child support, the court may deviate from the presumptive amount based on numerous factors, including the obligee parent’s low income and ability to maintain the basic necessities of the home for the child, the likelihood that either parent will actually exercise the time-sharing schedule set forth in the parenting plan and whether all of the children are exercising the same time-sharing schedule. If the trial court wishes to deviate from the presumptive amount by more than five percent, the final judgment must include findings of fact to support the deviation and explain why the guidelines amount is unjust or inappropriate.

In this case, the trial court erred in ordering a number of overnights to each parent that contradicted those ordered in the parenting plan without explaining the discrepancy. This was an error on the face of the judgment requiring the appeals court to reverse and remand.

Case:             Sikora v. Sikora
Court:            Second District Court of Appeal.
Trial Judge: Richard A. Nielsen.
Attorneys:      Christine A. Hearn, Steven L. Brannock, Mark F. Baseman.
Issues:            Alimony, Equitable Distribution, Imputation.

Holding:         Permanent Periodic Alimony

Permanent periodic alimony is used to provide the needs and the necessities of life to a Former Spouse as they have been established by the marriage of the parties. Absent special circumstances, an alimony award should not exceed a Recipients Spouse's need (excessive awards constitute an abuse of discretion). In the absence of special circumstances, a trial court errs by awarding permanent, periodic alimony in an amount that exceeds a Former Spouse’s established needs. In this case, the trial court failed to include findings detailing any special circumstance that would explain why alimony was awarded in an amount exceeding the amount necessary to meet the Former Wife's need. The appeals court reversed and remanded for the trial court to either include such findings or reconsider the issue in its entirety.

Imputation

Trial courts may impute income from interest earned on retirement accounts if the income is readily available to a Former Spouse without penalty and without the need to reduce the principal. However, any decision to impute income must be supported by competent, substantial evidence. In this case, the trial court erred by imputing income to the Former Wife from her retirement accounts where there was no evidence to support the specific rate of return used by the trial court. Nor was there an agreement of the experts on the rate of return for the retirement accounts or evidence of the historical rate of return. Rather, the trial court selected the same rate of return used for imputing income on the Former Wife's investment accounts. The appeals court remanded with directions to adjust the alimony award accordingly.

Retroactivity

Generally, when a trial court awards alimony, it abuses its discretion if it fails to make the award retroactive to the date of filing the petition for dissolution. There is an exception where the trial court enters a temporary alimony award during the pendency of the case. In that situation, a retroactive award is limited to the date that the request for an increased award is filed. However, a temporary alimony award can be readdressed at a final hearing if the temporary award was made "without prejudice."

In this case, the parties stipulated that the Former Husband would pay temporary alimony, and the court awarded temporary alimony "without prejudice” such that the issue of temporary alimony could be readdressed at the final hearing. The appeals court ordered the reversal of the permanent, periodic alimony award, and on remand, directed the trial court reconsider the issue of retroactivity of any newly imposed permanent, periodic alimony award (after comparing such award to the stipulated temporary alimony).

Life Insurance

A trial court must include findings relating to a Former Spouse’s insurability at the time of trial and the cost of an insurance policy. In this case the trial court erred when it ordered the Former Husband to secure an insurance policy in the absence of any explanation for how this amount was arrived at or what it was based on. Moreover, trial court's failure to explain how it arrived at the specific dollar requirement was troublesome because the specific amount of coverage bore no correlation to projected alimony amounts and it was not possible for the appeals court to ascertain if the trial court ordered life insurance for purposes other than securing alimony due at the time of the Former Husband's death.

Lump Sum Alimony

Courts have previously reversed lump sum alimony awards that have no evidentiary support. In this case, there was no evidence to justify the lump sum alimony award, and the trial court made no findings to explain its rationale. The appeals court reversed and remanded for the trial court to reconsider the award based on the evidence on the record.

Attributing Dissipated Assets as Part of Equitable Distribution

It is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, an exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset. The misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. Instead, to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse's intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.

n this case, the trial court erred failing to apply to the standard for attributing dissipated assets to a spouse in dissolution proceedings. Specifically, the trial court erred in attributing monies to the Former Wife in the equitable distribution in such a way that amounted to a sanction for failing to comply with a documenting requirement. The appeals court reversed the trial court's equitable distribution awards and remanded for further proceedings.

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